Monday, December 13, 2010

All or Nothing Equality

By Mike Dorf

One of the most intriguing aspects of the Prop 8 litigation concerns the question of whether California (and other states with similar laws) made it more likely that its law would be found unconstitutional by extending the benefits of marriage to same-sex couples without the word marriage. The competing views go as follows:

On the one hand, having (more or less) extended all of the tangible benefits of marriage to same-sex couples, California has lost the ability to claim certain government policies as rationally supporting its decision to withhold the term "marriage." For example, suppose the government claims that children do best (other things being equal) if raised by two parents of the opposite sex. I happen to think this claim is false, and even if it were true, I don't think it would be a sufficient basis for denying same-sex couples the right to raise children (either those biologically connected to one or both of them or adopted children)--but under traditional rational basis scrutiny, it is a sufficient ground for a policy that a lawmaker could rationally think that the predicate facts for the policy exist. So one could well think that state lawmakers would have a rational basis for restricting marriage and the right to raise children to opposite-sex couples. Yet if that rationale is available to support Florida's refusal to recognize same-sex marriage because Florida also has draconian adoption laws, it's unavailable in California. Accordingly, if the right standard of review is rational basis scrutiny (about which my latest FindLaw column has more to say), then California, in withholding only the label "marriage," acts irrationally in a way that Florida does not.

On the other hand, that result seems perverse. Can it really be true that California, which is much more LGBT-friendly in its policies overall, including with respect to civil unions, has acted unconstitutionally, whereas Florida has not? And if so, doesn't that give states the perverse incentive not to take substantial strides towards equality for fear of opening themselves up to the charge that in doing so they did not go far enough? These issues were raised (but hardly resolved) during the 9th Circuit oral argument last week.

Here I simply want to note how common this phenomenon is in constitutional law. Consider free speech doctrine. Suppose a local government obtains a parcel of property by bequest. It could sell the parcel to a private developer, in which case the public would have no right to go on the property, except as invitees of the property-holder. Or the government could use the property as an office building or other "nonpublic forum," in which case the public would have a somewhat greater right of access and any government restrictions on expression on the property would have to be both reasonable and neutral with respect to viewpoint. And if the government decides to turn the property into a park or public square, the public would have nearly complete access and the government could only enforce content-neutral time, place or manner restrictions on speech. To put the point differently, the more the government does to open the property up, the more it constitutionally obligates itself to do relative to people who want to use the property for expressive activities. That's the same "perverse" result as in the comparison between California and Florida, but the "perversity" is not a sufficient ground for discarding the doctrine.

It's tempting to say that all of equal protection doctrine has this character. State and local governments have no federal constitutional responsibility (per the DeShaney case) to provide police protection, but if a government does undertake to provide police protection, it can't systematically deny such protection to any class of persons. Of course, the difference between that general proposition and the marriage/civil unions question is that in the police protection example we are comparing what the government is doing for one class of persons with what it is doing for another class, whereas in the marriage/civil unions example we are comparing how much equality different jurisdictions are giving the same class of persons.

Perhaps tort law is a good comparison. In most jurisdictions, there is no duty to rescue a stranger, but if you do undertake to rescue a stranger, you can't just quit in the middle--even though persons in peril may well be better off with a half-effort (e.g., a good Samaritan who performs the Heimlich maneuver and CPR for three minutes but then leaves to catch a train) than no effort at all. The conventional justification for liability for abandoning a non-obligatory rescue is that once the rescuer undertakes the rescue, he diverts other potential rescuers. But it's hardly clear that this will be true more often than false. And in any event, whether the rule is justified or not, I'm interested here in the fact that it has the same basic structure as the supposedly perverse logic in the Prop 8 case. Here, as elsewhere, the greater power to deny something entirely does not necessarily include the lesser power to grant it in part.

15 comments:

So stringing this out a little, suppose the town in Romer also had an ordinance that outlawed same-sex activity in the bedroom. That would make the Romer "animus" more rational as a legal matter? It seems like the opposite: both ordinances establish a larger pattern of *irrational* animus toward gay people.

In Romer, the Court thought the breadth of Amendment 2 showed that it reflected anti-gay animus, so making it broader still--as in your example--would not have mitigated the problem. By contrast, the plaintiffs in Perry point to statements during the campaign for Prop 8 and Prop 8's failure to advance the asserted purposes involving child-rearing as e evidence that it was motivated by animus. That second argument is undermined by California's recognition of same-sex unions and various parental rights for same-sex couples.

By contrast, the plaintiffs in Perry point to statements during the campaign for Prop 8 and Prop 8's failure to advance the asserted purposes involving child-rearing as e evidence that it was motivated by animus. That second argument is undermined by California's recognition of same-sex unions and various parental rights for same-sex couples.

If the animus argument does not work for plaintiffs, what is their argument? I am not persuaded by the animus argument for reasons you mention above.

MB: The plaintiffs say that Prop 8 fails rational basis scrutiny because forbidding same-sex couples from using the term "marriage" is not a rational means of providing support for opposite-sex couples. As I note in the column, Judge Reinhardt said in the oral argument that such an interest would be better served by banning divorce for opposite-sex couples.

The plaintiffs also say that heightened scrutiny applies on three alternative grounds: 1) marriage is a fundamental right; 2) Prop 8 is a sex-based classification; and/or 3) Prop 8 is a sexual-orientation-based classification and such classifications trigger heightened scrutiny.

None of these other claims is unique to California, which probably explains why the court was interested in the Romer argument.

[T]hat second argument is undermined by California's recognition of same-sex unions and various parental rights for same-sex couples.

I disagree. The favorable treatment of same-sex unions and the failure of the asserted rational bases both sharpen the picture: Prop 8's only purpose and effect are to deny equality to same-sex unions.

The mistake in characterizing this as a paradoxical position can be clarified by separating the degree or quantity of animus from its nature or quality. Florida's stance is consistent with a coherent (even if ignorant or bigoted) view of same-sex couples. Since California law is generally inconsistent with that view, one might say that California has less animus than Florida. The animus demonstrated by Prop 8, however, of a different quality. It is purer, existing for its own sake.

[D]oesn't that give states the perverse incentive not to take substantial strides towards equality for fear of opening themselves up to the charge that in doing so they did not go far enough?

I understand that as a pragmatic statement, but I have little sympathy for those states. What is their motivation to take "substantial strides towards equality" in the first place? If it is other than political calculation, then it must be some sense that it is the "right" thing to do. But if same sex couples are deserving of that much justice, why is it necessary to retain the scarlet letter?

Of course, the difference between that general proposition and the marriage/civil unions question is that in the police protection example we are comparing what the government is doing for one class of persons with what it is doing for another class, whereas in the marriage/civil unions example we are comparing how much equality different jurisdictions are giving the same class of persons.That is the key statement here.

The all-or-nothing component in equal protection analysis refers to providing a particular benefit to all groups against no groups. If a benefit if provided selectively to certain groups, then a sufficient constitutional justification is required.

It does not apply to the proportion of a set of benefits awarded to a particular group. If it is constitutional to provide 30% or 50% of a particular benefit to a group, I fail to see how providing 40% would be unconstitutional. In Romer, the Court thought the breadth of Amendment 2 showed that it reflected anti-gay animus, so making it broader still--as in your example--would not have mitigated the problem. By contrast, the plaintiffs in Perry point to statements during the campaign for Prop 8 and Prop 8's failure to advance the asserted purposes involving child-rearing as e evidence that it was motivated by animus. That second argument is undermined by California's recognition of same-sex unions and various parental rights for same-sex couples.A law like Oklahoma's Question 711, which states "Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." is much more suggestive of animus than Proposition 8. The mistake in characterizing this as a paradoxical position can be clarified by separating the degree or quantity of animus from its nature or quality. Florida's stance is consistent with a coherent (even if ignorant or bigoted) view of same-sex couples. Since California law is generally inconsistent with that view, one might say that California has less animus than Florida. The animus demonstrated by Prop 8, however, of a different quality. It is purer, existing for its own sake.In other words, if a state participates in a broad pattern of discrimination against homosexuals in all walks of life, then it is justified to deny marriage to same-sex couples because of that.And if so, doesn't that give states the perverse incentive not to take substantial strides towards equality for fear of opening themselves up to the charge that in doing so they did not go far enough? More importantly, it would allow the state of California to deny marriage to same-sex couples if they (by constitutional amendment) eliminated domestic partnerships, or even simply refuse to recognize new domestic partnerships.

Yet if that rationale is available to support Florida's refusal to recognize same-sex marriage because Florida also has draconian adoption laws, it's unavailable in California. I should also add that Florida's draconian adoption laws were declared unconstitutional by a Florida appellate court.

None of these other claims is unique to California, which probably explains why the court was interested in the Romer argument. I do believe the case will be ultimately decided on the constitutionality of the sex-based classification.

If the Supreme Court continues to rule that heightened scrutiny applies in sex discrimination cases (as it did in Craig v. Boren and Michael M. v. Superior Court of Sonoma County), then it would dismiss the sexual orientation discrimination claim as moot.

If Proposition 8 passes heightened scrutiny, I fail to see how it would fail the rational basis review required in sexual orientation discrimination claims.

In other words, if a state participates in a broad pattern of discrimination against homosexuals in all walks of life, then it is justified to deny marriage to same-sex couples because of that.

No, that's not what I've been saying. It is not "justified," but it is in a better position to construct a rational (i.e., coherent) defense of its position. It can argue a consistent theory (and present evidence, if it deigns to) that same sex relationships are in fact inferior to opposite sex relationships. California cannot do that, because it would be inconsistent with its public policy that acknowledges that same sex relationships are essentially similar to opposite sex relationships ... but we have to call them something different, because ... um ... otherwise our children might think that they are similar.

There is a Ninth Circuit case from this year, Coyote Publishing, Inc. v. Miller . There, the Court had stated that the Constitution "does notrequire that a regulatory regime single-mindedly pursue one objective to theexclusion of all others.”

Proposition 8 must be analyzed independently of other California state laws. There has never been a Supreme Court (or a Ninth Circuit ruling) indicating that perfectly constitutional laws may not be constitutionally enforced if other, incongruous laws or policies are also simultaneously enforced.